PARTITION PROCEEDINGS
Real estate partition proceedings is a body of law devoted, not to resolving who owns a given tract of land, but how it is to be divided when joint or common owners disagree as to how it should be used. Joint and common owners are not required to be held captive by one another, unable to freely use or sell their interest in the property whenever and as they see fit. In those instances when a parcel of property is owned by one or more people and they cannot agree as to whether it should be sold or how it should be developed, one or more of them may institute a partition proceeding asking the court to equitably divide it.

Since all land is unique, the partition laws have a built-in preference for an in kind (i.e., physical) division of the land, if practicable. The court will appoint three commissions who may hire surveyors, as necessary, to accomplish that task. If the unique characteristics of a given tract of land make an equitable, in kind division infeasible (e.g., the existence of flood plains in one portion of the property, multiple zoning use/restrictions, limited access to public roadways, etc.), then the law requires that a commissioner be appointed to market and sell the property. Once approved and concluded, the proceeds of the sale are divided among the owners according to their pro rata, or percentage, interest.

I inherited some land and share ownership with my relatives. I don’t want to pay property taxes and would rather sell it. My relatives have no interest in selling it or buying my share—what can I do?

The only way to separate your interest from your relatives, if you can’t voluntarily reach an agreement, is to file a partition proceeding asking the court to divide the property either in kind (i.e., physically) or by selling the property. Depending on the particular circumstances of your case, it may be possible to separate and sell your portion of the property while allowing your relatives to maintain ownership and possession of the remainder.

The property is located in Alamance County but I live in Charlotte—can I file the partition proceeding here?

No, a partition proceeding must be initiated in the county where the land is located.

The property is a house in a subdivision, how can it be divided?

The simple answer is it can’t. Since most of the property’s value is likely the improvements on it (i.e., the house) and a house cannot be physically divided (without destroying substantially all of its value), the court will order that the property be sold.

The property is farm land, how can it be divided?

The property can be divided into as many pieces as necessary to ensure each owner gets an equitable share. For example, if the farm is 100 acres of raw land owned by four people with equal interests, then (all other considerations being equal) it will be divided into four, twenty-five acre parcels. Difficulties arise when one area of the farm has a barn, while another portion fronts a major roadway, and yet another corner is best suited for actual agricultural purposes. The commissioners should take these factors into account and divide it equitably according to value rather than acreage. If this cannot be done, the commissioners will order that the owners of the more valuable pieces compensate the owners of lesser value parcels to eliminate the difference.

What is a commissioner in a partition proceeding?

A commissioner is a neutral party appointed by the clerk of court to determine how property should be divided in kind. When the property is ordered to be partitioned by sale, a commissioner serves the same role as a real estate agent.

Do I have to pay the commissioners for their service?

Yes. The clerk of court will determine a reasonable fee for the commissioners’ services and apportion it among the parties accordingly as a cost of the proceeding or from the proceeds of the sale.

Who decides how and whether an in kind division of property is fair?

The clerk of court will initially determine whether the property should be divided in kind or via a partition by sale. Once the clerk decides the property can be divided in kind, he or she will appoint three commissioners who will submit a report (typically within 90 days) as to how that should be done. The report will include a map prepared by a surveyor illustrating how it shall be divided.

If any party takes exception to the commissioners’ report, they must file their basis for doing so within ten (10) days. The grounds for objecting to the commissioners’ report are for mistake, fraud, or collusion. The clerk will then confirm, recommit, or vacate the report as he or she sees fit until a report is confirmed without appeal.

If the court orders that the property be partitioned by sale, how is the sales price determined?

The commissioners will evaluate the market by comparing comparable sales and market the property such that it can be sold for fair market value.

If the property is sold, who decides whether the purchase price is fair?

After finding a willing purchaser, the commissioners will notify all parties of the proposed purchase price. If any party believes that price is inadequate or inequitable, he or she may file a petition requesting the court revoke its order of confirmation and will have right for a hearing on that issue.

One or more of the joint or common owners who prefer to retain ownership of the property may submit an offer for the entire parcel. Their individual or combined ownership interest will be credited against the purchase price.

Is there any other alternative to partition in kind or partition by sale?

Yes. The parties may agree, at any time during the process and prior to confirmation, to mediate the dispute. Similarly, when a partition sale is requested, the clerk of court may order a mediation prior to deciding whether to order the sale.
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